Sexual Harassment of Independent Contractor Can Violate New Jersey Law Against Discrimination

On January 6, 2010, the New Jersey Appellate Division ruled that J.T. Tire Service can proceed with its sexual harassment lawsuit against United Rentals North under the New Jersey Law Against Discrimination. In the case, J.T. Tire alleges that United Rentals terminated its contract with United Rentals because the owner of J.T. Tire, Eileen Totorello, rejected the sexual advances of one of United Rentals’ branch managers, Harold Hinkes.

Specifically, Ms. Totorello alleges that Mr. Hinkes attempted to extort sexual favors from her. She claims that when she initially refused his sexual advances, Mr. Hinkes’ branch temporarily stopped buying tires from J.T. Tire. He only resumed doing business with J.T. Tires after Ms. Totorello agreed to have lunch with him.

Ms. Totorello futher claims that, several years later, Mr. Hinkes kissed her and groped her against her will. When she refused his advances, Mr. Hinkes told her she was making a “very poor business decision.” One month later, United completely stopped doing business with J.T. Tire.

J.T. Tire and Ms. Totorello then sued United Rentals and Mr. Hinkes for sexual harassment and retaliation in violation of the New Jersey Law Against Discrimination. On a motion to dismiss, United Rentals argued that the case should be thrown out because Ms. Totorello was not an employee of United Rental. The trial judge apparently agreed, since he dismissed all of the claims.

However, the Appellate Division reversed that decision and sent the case back to the trial court. It did so based on a provision of the Law Against Discrimination which makes it unlawful to refuse to buy from, contract with, or otherwise do business with any person on the basis of their sex. The appellate court explained that if Ms. Totorello’s allegations are true, United violated that section of the Law Against Discrimination since sexual harassment is discrimination because of sex. That provision is separate from the portion of the Law Against Discrimination that prohibits employment discrimination.

The Appellate Division further indicated that Ms. Totorello is claiming “quid pro quo” sexual harassment. Quid pro quo sexual harassment occurs when an individual or a company makes sexual favors or a sexual relationship a condition of employment or a contract.

The appellate court explained that if companies engage in the type of conduct alleged by Ms. Totorello, it would “stand as a barrier to women’s ability to do business on an equal footing with men.” The court also indicated that its interpretation of the law would help further an important social policy protected by the New Jersey Law Against Discrimination, which is to “eradicate the cancer of discrimination.”

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